A federal court has ruled that the policies of the Illinois Department of Children and Family Services (DCFS) have deprived many people of their constitutionally protected rights.

On March 30, 2001, Judge Rebecca Pallmeyer said in her opinion that "Something is seriously and obviously flawed in a system where 75% of those child care employees who appeal an indicated finding against them have such a finding overturned or voluntarily expunged by the State months, sometimes even years, later." DuPuy v. McDonald, No. 97 C 4199, slip op. at 78-79 (N.D. Ill. March 30, 2001).

Brought by a group of citizens who have been investigated for child abuse, the case was filed as a class action suit against the Illinois DCFS. Pallmeyer's opinion pointed out the incredible damage done to these families. Appeals of a finding of abuse or neglect take 2.1 years, on average, and a child care professional who has been falsely "indicated" will find it very difficult to get a job while the case is on appeal.

"During the agonizing and frustrating period between accusation and exoneration, these individuals, labeled by the State as perpetrators of child abuse and/or neglect, lost not only their pride and reputation, but often their livelihood as well," the judge wrote.

Pallmeyer ordered a halt to current procedures and gave DCFS 60 days to come up with a new way of conducting investigations.

Home School Legal Defense Association (HSLDA) has gone to court repeatedly to defend member families from false charges of abuse and neglect. HSLDA attorneys have observed that child abuse and neglect investigations too often ignore the constitutional rights of families. Yet, many social workers still insist that the Constitution does not apply to them.

"Losing a job is a bad thing, but losing a child is infinitely worse," said J. Michael Smith, president of HSLDA. "We have fought for better procedures for a long time. Innocent families are so often ripped apart by inaccurate 'findings' of child abuse of neglect. Judge Pallmeyer's opinion is a big step in the right direction for families in Illinois."

The written opinion starts with a clear and thorough description of the process that Illinois uses for investigating child abuse and neglect complaints. (Illinois' procedure is similar in many ways to that in use in other states.) The opinion identifies a number of problems with Illinois' existing procedures.

For example, each person suspected of abusing a child must be given a written notice, but the form that Illinois uses "does not specify the allegations, name the suspected perpetrator of the abuse or neglect, or explain the investigative process. The [form] also fails to inform the recipient of any rights afforded to persons being investigated as perpetrators." DuPuy, slip op. at 10.

The court noted the difficulty of appealing a finding of child neglect or abuse. Although parents and other caregivers are allowed to subpoena witnesses to testify on their behalf during the appeal process, the judge observed, "Because the investigative files are so heavily redacted, an appellant is often unable to identify adverse witnesses."

Although Illinois law allows an appeals judge to make an unedited copy of the files available to a party appealing a decision, the court was unaware of any case where this had ever actually been done.

To make matters worse, "children under the age of 14 are not allowed to testify at the hearing unless the [appeals judge] determines that such testimony is essential to the determination of the appeal and there is no likelihood of inflicting emotional harm to the child. Therefore, even where a report is indicated principally on the statement of children, those children may not actually testify at the hearing." DuPuy, slip op. at 20.